IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
COMPANIES WINDING-UP PROCEEDINGS NO. 448 OF 2008
Before : Hon Poon J in Chambers
Date of Hearing : 11 August 2009
Dates of Supplemental Written Submissions : 11 and 12 August 2009
Date of Decision : 11 September 2009
D E C I S I O N
1. This is an appeal by Mr Patrick Chau Cham Wong and Mr Leung Yung, the contributories of A-One Investment Limited (“the Company”),wound up on 3 December 2008, against the master’s order dated 26 May 2009 appointing Mr Cosimo Borrelli and Ms G. Jacqueline FangonilWalsh as liquidators on the principal ground of apparent bias against them.
2. The background circumstances are summarized as follows.
A. Background circumstances
A.1. Events leading up to the winding up petition
3. Incorporated in the BVI, the Company was an investment holding company. It wholly holds A-1 Business, another BVI company, whichin turn holds 65% equity interest in SFT Holdings de Finance et de Technologie (“SFT”). The Company acquired the equity interestby a loan advanced by ABN AMRO Bank N.V. (“ABN”) on 13 September 2007. The Company also holds shares in Peace Mark HoldingsLimited (“Peace Mark Holdings”), a listed company in Hong Kong, which was until the appointment of the provisional liquidatorson 10 September 2009, under the management of Mr Chau as chairman and Mr Leung as CEO.
4. The loan referred to above was later re-financed by the bonds issued by the Company to ABN on 1 February 2008 which was secured by,inter alia, a charge over 131,285,051 shares in Peace Mark Holdings. The trustee of the bonds is DB Trustees (Hong Kong) Limited (“DB Trustees”).
5. The Company subsequently defaulted. On 23 September 2008, DB Trustees presented a winding up petition against the Company.
A.2. Appointment of provisional liquidators
6. At the same time, DB Trustees applied for the appointment of Mr Borrelli and Ms Walsh as provisional liquidators on the grounds ofquestionable conduct of the management by Mr Chau and Mr Leung, surreptitious disposal of SFT and possible financial irregularitiesof Peace Mark Holdings. The application was allowed by Kwan J.
7. The provisional liquidators then carried out investigation of the Company’s affairs. They found out that the Company, whilst underthe control of Mr Chau and Mr Leung as directors, entered into an agreement dated 12 August 2008 with Festina Lotus S.A. (“Festina”),a Spanish company, to sell its 65% equity interest in SFT for a total consideration of CHF27 million. Pursuant to the agreement,Festina made an initial payment of CHF10 million to the Company and paid a second tranche of CHF10 million to A-1 Business on orabout 22 August 2008. The provisional liquidators repeatedly asked Mr Chau and Mr Leung to account for the whereabouts of the CHF20million without avail.
8. The provisional liquidators then obtained Kwan J’s sanction on 29 September 2008 to commence HCA1868/2008 in the name of the Companyas a derivative action against Mr Chau and Mr Leung to recover the CHF20 million and to apply for a worldwide Mareva injunction against them. The injunction was granted on the same day.
9. A couple of points arose from the evidence filed by Mr Chau and Mr Leung in opposing the continuation of the Mareva injunction.
10. First, Mr Chau admitted that he had used the CHF20 million to repay his personal debt owed to DBS Bank on 25 August 2008. Mr Chauand Mr Leung alleged that Mr Chau did so pursuant to a resolution purportedly passed by them as directors of A-1 Business on thesame day to pay a dividend of the same amount to the Company which, they alleged, owed Mr Chau HK$300 million, a loan that he advancedto the Company earlier on 14 May 2008 (“the Disputed Loan”). However, they had been unable to produce any documentary evidencein support of the Disputed Loan. Mr Chau and Mr Leung further accepted that save of HK$50,000, the HK$300 million paid in to theCompany’s account was paid out to Peace Mark Ltd, a wholly owned subsidiary of Peach Mark Holdings, immediately after it was received. They alleged that it was a “demand loan” advanced by the Company to Peach Mark Ltd, without however producing any documentaryevidence in support. It is the provisional liquidators’ case that the $300 million was never used by the Company for its benefitor purpose.
11. Second, Mr Chau said that between 3 July and 5 August 2008, he had already drawn 5 cheques on behalf of the Company for a total ofHK$90,608,713, which was used to repay the Disputed Loan.
12. On 13 November 2008, Deputy Judge Mayo ordered the Mareva injunction to be continued against Mr Chau. The provisional liquidators did not seek continuation of the injunction against Mr Leungafter considering the further evidence filed.
13. Separately, the provisional liquidators applied for summary judgment against Mr Chau and Mr Leung, which was dismissed by DeputyJudge Bharwaney SC on 27 May 2009. But he granted the Company leaved to appeal. The appeal is scheduled to be heard on 10 September2009.
A.4. Winding up
14. On 3 December 2008, the Company was ordered to be wound up.
15. The provisional liquidators continued to act pursuant to section 194(1)(aa) of the Companies Ordinance, Cap. 32.
16. By order dated 12 January 2009, Kwan J gave sanction to the provisional liquidators to commence HCA253/2009 against Mr Chau, Mr Leungand DBS Bank for the HK$90,608,713 that Mr Chau allegedly misappropriated (by drawing the 5 cheques referred to in paragraph 11 above)from the Company and A-1 Business and other reliefs to avoid various security purportedly created by Mr Chau and Mr Leung on behalfof the Company in favour or DBS Bank for Mr Chau’s personal loan.
17. In their defence, Mr Chau and Mr Leung relied on the Disputed Loan to justify Mr Chau’s taking of the HK$90,608,713 to repay hispersonal loan owed to DBS Bank.
A.6. Settlement with Festina
18. By the same order of 12 January 2009, Kwan J gave sanction to the provisional liquidators to settle with Festina for the last instalmentdue and payable to A-1 Business for CHF5.5 million.
A.7. Meetings of creditors and the contributories
19. On 3 February 2009, the first meetings of the creditors and contributories were held.
20. At the meeting of the contributories, only Mr Chau (through proxy) attended. He voted against the appointment of the provisionalliquidators as liquidators.
21. The meeting of creditors was attended by DB Trustees, DBS Bank and Mr Chau.
22. The indebtedness due to DB Trustees (HK$184,106,279) was not disputed. The provisional liquidators adjudicated its claim for votingpurposes at HK$184,106,278, that is, one dollar less than the claim. The provisional liquidators made that adjudication after takinginto account the value of the security in the form of the charge over the shares of Peace Mark Holdings, which could not be soldas trading in Peace Mark Holdings has long been suspended.
23. DBS claimed for HK$65,601,339 as the outstanding balance of Mr Chau’s personal loan, purportedly guaranteed by the Company. MrChau claimed for HK$69,391,286 as the balance of the Disputed Loan. Since both DBS’s and Mr Chau’s claims are subject mattersof on-going proceedings, the provisional liquidators took the view that their status as creditors had not been established and adjudicatedtheir claims at HK$1 for voting purposes.
24. Various resolutions were then passed at the creditors’ meeting. DB Trustees voted for the appointment of the provisional liquidatorsas liquidators of the Company. Mr Chau opposed and proposed KT Consultants Ltd. DBS Bank abstained from voting.
A.8. The master’s order
25. Because of the parties’ difference as to who should be appointed liquidators of the Company, the provisional liquidators took outan application before the master. The contributories opposed the appointment of the provisional liquidators as liquidators on theground that “they were dissatisfied with the provisional liquidators’ apparent prejudiced bias” against them. They proposedKenny Tam King Ching of Kenny Tam & Co. as liquidator.
26. As noted, the master appointed the provisional liquidators as liquidators of the Company.
27. So much for the background. I now turn to the law.
B. The law
28. The court has a wide discretion when appointing liquidators. It is not bound by the determinations of the meetings of the creditorsor the contributories, although the court would have due regard to those determinations. The court will consider what is in thebest interests of all persons interested in the winding up. Naturally that would result in a saving in the time and cost of investigatingthe company’s affairs should be preferred : see Re Akai Holdings Limited & Another  2 HKLRD 411, per Yuen J (as she then was) at 417I-418C.
29. The court may decline to appoint any nominated liquidator if his appointment conflicts or is likely to conflict with the bests interestof the winding up as a whole including the best interests of all parties concerned in the winding up : Re Orient Power Holdings Ltd  2 HKLRD 494, per Kwan J at para.26(3).
30. As an officer of the court, a liquidator should maintain an even and impartial hand between all individuals whose interests are involvedin the winding up. A guiding principle in appointing a liquidator is that he must be independent and seen to be independent, asit is of great importance there should be no possibility of criticism attaching to the liquidator as an officer of the court on theground of a conflict of interest as liquidator in circumstances where there is some real prospect, even if small, of a conflict ofinterest and duty when the liquidator is conducting his duties : Orient, supra, at para. 26(4).
31. Any conflict of interest or even over-familiarization should be discouraged. But it is not every connection or action that can giverise to an allegation of an appearance of lack of independence and impartiality on which the court should act : Akai Holdings, supra, at 421A-B. It must depend on the facts of the case.
32. With these principles in mind, I now turn to consider the points taken by Mr Chau and Mr Leung in support of their case on apparentbias.
C. Points taken by the contributories
C.1. Preferential treatment given to DB Trustees/ABN
33. At the creditors’ meeting, the provisional liquidators on the one hand made the adjudication in favour of DB Trustees’ claimwithout asking it to surrender the security while on other hand adjudicated Mr Chau’s claim to be HK$1.
34. Contrary to any suggestion Mr Chau and Mr Leung might wish to make, the adjudications made by the provisional liquidators were forvoting purpose only. They did not make any adjudication on the claims for dividend purpose, which hopefully will take place in thefuture. I am told that for voting purposes, adjudicating a secured creditor’s unsecured claim by taking into account the valueof the security that he holds and adjudicating a disputed creditor’s claim at HK$1 is a well-established practice. Nothing inthe evidence suggests otherwise.
35. Here, the indebtedness owed to DB Trustees is never in doubt. The value of the security held by them is of nil value as long astrading in the shares of Peach Mark Holdings remains suspended. The provisional liquidators did take that into account and madethe adjudication as they did. I can see no preferential treatment in their favour.
36. On the other hand, Mr Chau’s claim is hotly disputed. For voting purposes, the provisional liquidators were entitled to adjudicateits value at HK$1. That adjudication will not impact on the on-going legal proceedings at all. I fail to see any apparent prejudiceagainst Mr Chau or Mr Leung.
C.2. Commencing the High Court Actions
37. Mr Chau and Mr Leung next contended that apparent bias arose because the provisional liquidators chose to commence the two High CourtActions against them. They said the actions are unreasonable, oppressive and an abuse of process.
38. Underlying the contributories’ contention is the submission that the provisional liquidators have been acting unreasonably in refusingto recognize the validity of the Disputed Loan and Mr Chau’s status as the Company’s creditor. However, on the evidence beforethe court, the dispute raised by the provisional liquidators on Mr Chau’s claims is genuine and legitimate. The actions are properlycommenced, as indicated by the sanction given by Kwan J.
39. They then complained that the provisional liquidators saw fit to obtain a Mareva injunction against Mr Leung when it was not justified by the evidence. But it should be recognized that when the provisional liquidatorstook out the application, as is usual in similar applications, they did not necessarily have all the information. After Mr Leunghad filed his evidence, and after it had become apparent that the injunction could not be maintained against him, the provisionalliquidators had acted most responsibly by not seeking its continuation against him. I fail to see how they can be criticized forwhat they had done.
40. Mr Chau and Mr Leung also complained that the provisional liquidators adopted unjustified litigation tactics by taking an applicationfor summary judgment in HCA1868/2008, which was doomed to fail on extant authority. I need not say any more on this point. Sufficeit to note that after dismissing the application, Deputy Judge Bharwaney immediately gave the plaintiff leave to appeal, indicatingthat there is some prospect of success in the appeal. I do not think this point takes their case any further.
C.3. Engaging Mallesons
41. Mallesons was the solicitors acting for DB Trustees in the winding up petition. Mr Chau and Mr Leung complained that by engagingMallesons as their solicitors, the provisional liquidators put themselves in a position of conflict.
42. There can be no substance in this complaint for the simple reason that after the appointment of the provisional liquidators, Mallesonshave already ceased to act for DB Trustees or ABN on matters relating to the Company.
C.4. Settlement with Festina
43. Mr Chau and Mr Leung complained that the provisional liquidators ought not have settled with Festina when the claim against themwas very strong. I disagree. On the evidence before the court, nothing objectionable can be raised against the provisional liquidatorsfor settling with Festina. I only wish to add that the settlement was in fact sanctioned by Kwan J.
C.5. Unethical tactics
44. Mr Chau and Mr Leung complained that the provisional liquidators employed unethical tactics against them. I need not go into details. As rightly pointed out by Ms Chan, counsel for the provisional liquidators, the matters in support of the allegations were wellpredicated on the validity of the Disputed Loan. That being hotly disputed, this complaint cannot possibly stand.
C.6. Other points
45. Mr Wong, counsel for Mr Chau and Mr Leung, relied on some additional points including the costs incurred by the provisional liquidatorsand their relationship with Mallesons. Again I do not wish to dwell on details. Suffice to say that having carefully consideredall of them, I think they are wholly unmeritorious.
46. For the above reasons, I dismiss the appeal.
47. The parties have already made their submissions on costs and submitted their skeleton bills, which I have carefully considered. I order that Mr Chau and Mr Leung do jointly and severally pay the provisional liquidators’ costs assessed at HK$100,000 and theOfficial Receiver’s costs assessed at HK$50,000.
Ms Linda Chan, instructed by Messrs Mallesons Stephen Jaques, for the Provisional Liquidators (Respondents)
Mr Alexander Wong and Mr William Wong, instructed by Messrs Gallant Y.T. Ho & Co., for the Contributories (Appellants)
Mr Jenkin Suen, instructed by Official Receiver